Opinion
2013-00323, Docket Nos. V-18458-10, V-25387-10.
10-01-2014
In the Matter of Luis A. Figueroa–ROLON, Sr., respondent, v. Veronica TORRES, appellant.
Larry S. Bachner, Jamaica, N.Y., for appellant. Carol Lipton, Brooklyn, N.Y., for respondent. Steven P. Forbes, Jamaica, N.Y., attorney for the child.
Larry S. Bachner, Jamaica, N.Y., for appellant.
Carol Lipton, Brooklyn, N.Y., for respondent.
Steven P. Forbes, Jamaica, N.Y., attorney for the child.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
Opinion In related custody and visitation proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Richardson–Mendelson, J.), dated December 11, 2012, which denied her motion to hold the father in civil and criminal contempt for willfully violating the visitation provisions of an order of the same court dated January 5, 2012, as modified by an order dated March 30, 2012.
ORDERED that the order dated December 11, 2012, is affirmed, without costs or disbursements.
To find a party in civil contempt pursuant to Judiciary Law § 753, the applicant must demonstrate, by clear and convincing evidence, “ ‘(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct’ ” (El–Dehdan v. El–Dehdan, 114 A.D.3d 4, 16, 978 N.Y.S.2d 239, quoting Bernard–Cadet v. Gobin, 94 A.D.3d 1030, 1031, 943 N.Y.S.2d 164 ; see Judiciary Law § 753[A] ). To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party (see Astrada v. Archer, 71 A.D.3d 803, 898 N.Y.S.2d 149 ; Casavecchia v. Mizrahi, 57 A.D.3d 702, 869 N.Y.S.2d 604 ; Orange County–Poughkeepsie Ltd. Partnership v. Bonte, 37 A.D.3d 684, 686, 830 N.Y.S.2d 571 ; Yeshiva Tifferes Torah v. Kesher Intl. Trading Corp., 246 A.D.2d 538, 667 N.Y.S.2d 759 ).
In a criminal contempt proceeding, proof of guilt must be established beyond a reasonable doubt (see Muraca v. Meyerowitz, 49 A.D.3d 697, 698, 853 N.Y.S.2d 636 ). “The purpose of criminal contempt (see Judiciary Law § 750 ) is to vindicate the authority of the court. No showing of prejudice to the rights of a party to the litigation is needed ‘since the right of the private parties to the litigation is not the controlling factor’ ” (Dalessio v. Kressler, 6 A.D.3d 57, 65, 773 N.Y.S.2d 434, quoting Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 240, 519 N.Y.S.2d 539, 513 N.E.2d 706 [citations omitted] ). “However, ‘[a]n essential element of criminal contempt is willful disobedience. Knowingly failing to comply with a court order gives rise to an inference of willfulness which may be rebutted with evidence of good cause for noncompliance’ ” (Gomes v. Gomes, 106 A.D.3d 868, 869, 965 N.Y.S.2d 187, quoting Dalessio v. Kressler, 6 A.D.3d at 66, 773 N.Y.S.2d 434 ; see Matter of Snyder v. Snyder, 277 A.D.2d 734, 716 N.Y.S.2d 154 ; Ferraro v. Ferraro, 272 A.D.2d 510, 512, 708 N.Y.S.2d 438 ).
Here, the mother failed to demonstrate that the father's conduct, in failing to exercise his own right to visitation, was calculated to or actually did defeat, impair, impede, or prejudice her rights (see Matter of Yang v. Luo, 103 A.D.3d 661, 960 N.Y.S.2d 129 ; Matter of Januszka v. Januszka, 90 A.D.3d 1253, 934 N.Y.S.2d 622 ). Moreover, the Family Court's determination that the father's conduct was not willful has ample support in the record. Accordingly, the court properly denied the mother's motion to hold the father in civil and criminal contempt.